Pico Plurality and the Right to Receive Speech

Rosenthal, Lawrence rosentha at chapman.edu
Fri Jun 26 17:03:45 PDT 2009

I wonder whether the American Library Association case has not left a bit of life to Pico.  As I read the case, eight Justices agreed that content discrimination at public libraries posed no constitutional problem because libraries properly make content-based judgments when deciding what materials they will make available in their collections; yet eight Justices also believed that the public forum doctrine was properly applied to public libraries, and that the federal filtering statute should be assessed to determine if if undermined the traditional function of a public library.  Moreover, no Justice argued that one of the proper functions of a public library was to expose patrons only to officially sanctioned viewpoints.  Instead, the Court joined issue on whether the statute distorted the function of a public library, with the majority concluding that the statute imposed such a modest burden on adult patrons, who needed only to request that the filter be disabled if they wished to view blocked materials that the statute should be characterized as a reasonable means of protecting minors and unwilling viewers from inappropriate or indecent materials.  (for a more elaborate discussion of the case, see Part III.A of the article available here:   http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1273745)
There is of course a question whether a school library should be considered a limited public forum in the same fashion as a library open to the general public.  Still, it seems to me that there is a plausible argument that a school library is a more limited type of public forum than a general public library, but it is still, within a somewhat narrower scope defined by legitimate pedagogical objectives, a limited public forum for First Amendment purposes.  Accordingly, in a case in which there was a finding that a school board or other official made a judgment to remove materials from a school library for reasons entirely unrelated to the proper pedagogical and other constitutionally legitimate objectives of the school library, there may still be a tenable argument for a First Amendment violation. 
Larry Rosenthal
Chapman University School of Law 

From: conlawprof-bounces at lists.ucla.edu on behalf of guayiya
Sent: Fri 6/26/2009 4:36 PM
To: Tepker, Rick
Cc: CONLAWPROF at lists.ucla.edu
Subject: Re: Pico Plurality and the Right to Receive Speech

It is unfortunate that the caselaw does not consistently and robustly support a right to receive speech.
The right to speak is packaged with other FA rights, making it clear that potentially consequential speech is the core value.
A right to speak, but only into a void that has no possible audience, would not advance that value.
Obviously, a right to submit messages but only to a government site, which then had total discretion about which messages to transmit, would be a paradigm case of prior restraint.
These remarks leave many issues unresolved, but I think they foreclose the claim that there is no right to receive speech.
Any governmental restrictions on the right to receive speech must narrowly further a compelling public interest.
Daniel Hoffman

Tepker, Rick wrote:

	A few years ago I checked how often Pico was used as a basis for decisions.  It did not appear to be influential.  And, I think, for good reason.


	It is probably dented or even eclipsed by the American Library Assn case upholding a federal requirement of internet software filters for public libraries. There was no visible sign of a 'right to receive information' in that case.


	Rick Tepker

	Calvert Chair of Law and Liberty

	  & Professor of Law

	University of Oklahoma

	Norman, Oklahoma 73019


	rtepker at ou.edu


	From: conlawprof-bounces at lists.ucla.edu [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Volokh, Eugene
	Sent: Tuesday, June 23, 2009 1:36 PM
	To: CONLAWPROF at lists.ucla.edu
	Subject: RE: Pico Plurality and the Right to Receive Speech


	A tangential question:  Is the Brennan et al. opinion in Pico even properly seen as the "plurality," given that it got the same number of votes as the dissenting opinion, and the swing vote - Justice White's - expressed no view on the underlying First Amendment question (and in fact noted that the question might never need to be reached, depending on the outcome of proceedings below)?


	Back from the tangent:  Even if the Brennan et al. opinion is right, which I doubt, I can't see how it could be applicable to curriculum decisions (didn't it expressly distinguish those?) or to material that the school puts up as its own speech.  




	From: conlawprof-bounces at lists.ucla.edu [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Rick Duncan
	Sent: Tuesday, June 23, 2009 11:20 AM
	To: CONLAWPROF at lists.ucla.edu
	Subject: Pico Plurality and the Right to Receive Speech


Does anyone think that the Pico plurality got the free speech issue right when it stated that for a public school to remove books from the school library, because the books offended conservative parents who disagreed with the ideas expressed in the books, violated the right of willing students to receive the ideas expressed in the books? Does this right extend beyond removal of library books?

Here is an example we discussed in my 1A class this summer.

Suppose a public school puts up a "Gay Pride" display in the main hallway for the month of April to promote tolerance and equality. Some conservative students and their parents are offended by the display and complain to school authorities. If school authorities remove the display early to appease the complaining families, does this violate the Free Speech Clause and non-offended students' right to receive the ideas expressed in the display? Do those who make up the willing audience for the display have a right to receive the ideas which is violated when the school removes the display to appease the interests of those who dislike the ideas expressed? Or is this merely a case of government speech where the government may put up or take down the display for any reason, including to appease the offended families?

Rick Duncan 
Welpton Professor of Law 
University of Nebraska College of Law 
Lincoln, NE 68583-0902

"And against the constitution I have never raised a storm,It's the scoundrels who've corrupted it that I want to reform" --Dick Gaughan (from the song, Thomas Muir of Huntershill)



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